Judge: Colin Leis, Case: 20STCV09612, Date: 2024-11-27 Tentative Ruling
Case Number: 20STCV09612 Hearing Date: November 27, 2024 Dept: 74
Feldman v.
Ross
Defendant Fraser Ross’s Motion for
Sanctions
BACKGROUND
The
motion arises out of a Breach of Contract claim.
On
November 11, 2020, plaintiff Glenn Feldman (Feldman) filed the Operative
Complaint against Defendant’s Fraser Ross (Ross), Ali Mir Khan, Kitross Apparel
Los Angeles, LLC (Kitross) and Christopher Lee.
Plaintiff alleged nine causes of action, including: (1) Intentional
Misrepresentation; (2) Negligent Misrepresentation; (3) Breach of Fiduciary
Duty; (4) Breach of Contract; (5) Breach of Implied Covenant of Good Faith and
Fair Dealing; (6) Breach of Fiduciary Duty; (7) Constructive Trust; (8)
Accounting; (9) Fraudulent Conversion.
On
June 16, 2022, Ross propounded discovery requests upon Feldman.
On
July 19, 2022, Feldman submitted responses that were purely objections.
On
September 14, 2022, Feldman submitted supplemental responses.
On
October 21, 2022, Ross file a motion to compel supplemental responses which the
Court granted on April 18, 2023.
On
May 18, 2023, Feldman served supplemental responses that Ross alleges did not
comply with the Court’s order.
On
September 1, 2023, Ross filed this motion for terminating, or in the
alternative issue or evidentiary sanctions.
On
March 13, 2023, Feldman served second supplemental responses.
LEGAL STANDARD
The court is authorized,
after notice and an opportunity for hearing, to impose the following sanctions
against anyone engaging in conduct that is a misuse of the discovery process:
monetary sanctions, issue sanctions, evidence sanctions, terminating sanctions,
and contempt. (Code Civ. Proc.,
§¿2023.030, subds. (a)-(e).) Code of
Civil Procedure, section 2023.010, subdivision (g) provide that a misuse of the
discovery process includes evasive responses to discovery. (Code Civ. Proc. § 2023.010(f).)
“The discovery statutes
evince an incremental approach to discovery sanctions, starting with monetary
sanctions and ending with the ultimate sanction of termination. [Citation.]” (Doppes v. Bentley Motors, Inc.¿(2009)
174 Cal.App.4th 967, 992; see J.W. v. Watchtower Bible and Tract Society of
New York, Inc.¿(2018) 29 Cal.App.5th 1142, 1169.) If a lesser sanction fails to curb misuse, a
greater sanction is warranted. (Doppes,
supra, 174 Cal.App.4th at p. 992.) “Discovery
sanctions ‘should be appropriate to the dereliction, and should not exceed what
is required to protect the interests of the party entitled to but denied
discovery.’” (Ibid.) “But where a violation is willful, preceded by
a history of abuse, and the evidence shows that less severe sanctions would not
produce compliance with the discovery rules, the trial court is justified in
imposing the ultimate sanction.” (Id.,
quoting Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th
262, 279–280); Creed-21 v. City of Wildomar¿(2017) 18 Cal.App.5th 690,
702, quoting Doppes and Mileikowsky.)¿¿
The court should consider
the totality of the circumstances, including conduct of the party to determine
if the actions were willful, the detriment to the propounding party, and the
number of formal and informal attempts to obtain discovery. (Lang v. Hochman (2000) 77 Cal.App.4th
1225, 1246.) Terminating sanctions
should not be ordered lightly, but are justified where a violation is willful,
preceded by a history of abuse, and there is evidence that less severe
sanctions would not produce compliance with the discovery rules. (Doppes, supra, 174 Cal.App.4th at p.
992.)
Before any sanctions may
be imposed the court must make an express finding that there has been a willful
failure of the party to serve the required discovery responses. (Fairfield v. Superior Court for Los
Angeles County (1966) 246 Cal.App.2d 113, 118.) The party who failed to comply with discovery
obligations has the burden of showing that the failure was not willful. (Deyo v. Kilbourne (1978) 84 Cal.App.3d
771, 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250,
252-253.)
Evidence or issue
sanctions may be imposed only after parties violated discovery orders
compelling further responses, except in exceptional circumstances, including
where there was sufficiently egregious misconduct regarding a failure to
respond to discovery, or a prior discovery order would be futile. (New Albertsons, Inc. v. Superior Court (2008)
168 Cal.App.4th 1403, 1426.)
DISCUSSION
Ross
requests terminating sanctions, or in the alternative, evidentiary or issue
sanctions. Ross alleges that Feldman’s
responses to Ross’s Special Interrogatories (SROGS), Requests for Admissions
(RFA), Form Interrogatories and Requests for Production (RFP) were
deficient. Feldman alleges that he
provided sufficient, code compliant supplemental responses.
Special Interrogatories
Ross alleges that Feldman’s
supplemental responses to SROGs Nos. 2, 3, 6, 12, 15, 20, 21, 26-28, 37, 53,
55, 54 and 56 were all insufficient.
Special
Interrogatories Nos. 2, 3, 21
SROGS
Nos. 2, 3, 21 request Feldman state the “number of hours” he spent
“coordinating all legal matters” and “working on ‘compliance issues,
landlord-tenant relations, franchising, leasing real estate matters,
contractual matters and general supervision of the Company’s operations.’” Feldman responded in his second supplemental
responses to both that “after diligent inquiry and good faith effort he lacks
sufficient knowledge to fully respond” because he did not record the number of
hours. This response is not
substantially different from his first supplemental responses. Ross alleges that Feldman failed to state the
exact good faith efforts. Feldman’s
response to SROGS Nos. 2, 3, and 21 were sufficient.
Special
Interrogatories Nos. 6, 12, 15, 19, 20, 26, 27, 28
SROGS
Nos. 6, 12, 15, 19, 20, 26, 27, and 28 requests Feldman “IDENTIFY (by Bates
number) each DOCUMENT.” Feldman
responded that he has “not produced documents responsive to the interrogatory,
therefore he is unable to identify such documents.” Ross objects to this response on the basis
that it is non-responsive because the question does not ask if Feldman produced
any responsive documents, rather just to identify any responsive
documents. Although this may have been
Ross’s intention, by asking Feldman to identify the documents by Bates number,
Ross requested Feldman to identify produced documents. Therefore, Feldman has responded by stating
that he did not produce any documents, making the supplemental response
sufficient.
Special
Interrogatories No. 37
SROGS
No. 37 requests Feldman “State all facts on which YOU base YOUR contention that
YOU are entitled to punitive damages in this action.” Feldman responded with a generalized
statement that Ross “induced [Feldman] to use his knowledge, skill, and
expertise to revitalize [] no intention of compensating [Feldman].” This is not a statement of facts. Feldman did not further supplement the response. This response is insufficient. The Court will order issue sanctions as to
SROG No. 37.
Special
Interrogatories Nos. 53, 54, 55
SROG
Nos. 53, 54, 55 request Feldman provide descriptions of various events relating
to the operating agreement. Ross’s
response to SROG Nos. 53, 54 and 55 were all identical; “Responding Party does
not know the specific date and time ROSS was provided a draft of the Operating
Agreement. ROSS, upon receipt of a draft, requested the addition of a term
calling for his recoupment of the initial $600,000.00 loan to KITROSS. That
term was added to the Operating Agreement prior to ROSS’ execution.” This response is almost devoid of details and
fails to include a statement that Feldman made a good faith effort to obtain
the information he does not know. Therefore,
the court will order issue sanctions for SROG Nos. 53, 54, and 55.
Special
Interrogatories Nos. 56
SROG
No. 56 requests Feldman state “all discussions between YOU and ROSS prior to
ROSS’ execution of the OPERATING AGREEMENT.”
Feldman provides a brief summary of a conversation. This complies with
the bulk of the court’s order to “simply describe the discussions he remembers”
but fails to “state he answered the SROG to the extent possible after
reasonable and good faith effort to obtain additional information.” Feldman’s failure to certify that no
additional conversations occurred fails to comply with the Court’s order. Feldman did not provide further certification
in his second supplemental responses. The Court will order issue sanctions for SROG
No. 56.
Requests for Admission
Ross alleges that Feldman’s response
to RFA Nos. 26, 27, 28, and 45 were insufficient because the answers were not
“complete or straightforward.” Feldman
responded to the RFAs with “Admit” but then adds “in so far as Responding Party
was not obligated to do so” which is ambiguous. Because the responses are not complete and
straightforward, the court will order issue sanctions.
Form Interrogatories
Ross
alleges that Feldman did not provide a supplemental response to Ross’s FROGS
No. 17.1 with respect to RFA No. 44, 45, 60, and 61. Feldman clarifies in his opposition that he supplemented
his responses to Ross in the “Further Responses” instead of the “Second Further
Responses” section. In his Reply, Ross
recognizes that they were supplied. FROG
17.1 requests that for each response that is not an unqualified admission,
Feldman “(a) state the number of the request, (b) state all facts upon which
you base your response; (c) state the names, ADDRESSES, and telephone numbers
of all PERSONS who have knowledge of those facts; and (d) identify all DOCUMENTS
and other tangible things that support your response and state the name,
ADRESS, and telephone number of the PERSON who has each DOCUMENT or
thing.” Feldman provides two of Ross’s
responses in the Opposition paper, but at least one was mislabeled and neither
party provides the Court with either an additional separate statement or a copy
of the responses. Therefore, the Court
cannot impose evidentiary or issue sanctions against Feldman because the Court
cannot verify the sufficiency of the responses.
Request for Production of Documents
Ross
alleges that Feldman failed to supplement responses as to RFP No. 151. Additionally, Ross alleges that the document
production was incomplete despite the statement of compliance. The court cannot evaluate the completeness of
document production in a motion for sanctions.
Feldman’s
attorney declares that additional supplemental responses were provided upon
learning that the initial responses were “inadvertently omitted.” (Cunningham Decl., ¶¶ 4-5.) Feldman initially supplemented his responses
on May 18, 2023. When Ross did not
receive a supplemental response to RFP No. 151, Ross’s counsel sent a
meet-and-confer advising Feldman’s counsel that they had not received any
supplemental responses to RFP No. 151.
Feldman did not respond. Feldman
did not provide supplemental responses until March 13, 2024, more than six
months after the filing of this motion, to provide the supplemental
response. The court orders issue
sanctions as to RFP No. 151.
Monetary Sanctions
Ross
requests $11,060 in attorney’s fees for 22 hours at $500 per hour. Ross also requests $60.00 in costs. The court finds this reasonable.
CONCLUSION
The
court grants in part and denies in part Defendant’s motion for sanctions. Defendant to prepare a proposed order in
accordance with the Court’s rulings. Plaintiff to pay $11,060 in sanctions to
Defendant’s counsel within 30 days.